IMPORTANT POINT
The Election Commission is only need to consider whether there was a valid whip and the member defied the whip or abstained from voting. It is not for the Election Commission to enter into a finding as to the reasons for abstaining from the voting. So long as abstention is not condoned by the party, the EC is bound to declare such member as disqualified for violating whip.

JUDGMENT :

A. MUHAMED MUSTAQUE, J.

1. This writ petition is filed challenging the decision of the State Election Commission declaring the petitioner disqualified for being the Councilor of Thiruvalla Municipality and barring contesting in any election as a candidate to the local authorities for a period of six years.

2. The petitioner, Smt. Krishnakumari A.P. was elected as a Councilor of Thiruvalla Municipality as a candidate of Indian National Congress (INC) in the election held in November 2015. Shri R. Jayakumar, the petitioner before the Election Commission was also elected as a councilor being the candidate of INC.

3. A no-confidence motion was moved against Shri K.V. Varghese, the Chairman of Thiruvalla Municipality. Shri K.V. Varghese also was elected as an INC candidate. Shri K.V. Varghese refused to step down as a Chairman in spite of the direction given to the above effect by the DCC President. This resulted in moving a no-confidence motion by his own party member Shri Jayakumar. DCC President of Pathanamthitta issued the whip. The motion was tabled on 18.4.2017. On that day, Smt. Krishnakumari remained absent. Alleging that Smt. Krishnakumari abstained from voting deliberately, Shri Jayakumar filed the petition to disqualify Smt. Krishnakumari under the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (hereinafter referred to as the “Prohibition Act”).

4. The Election Commission, after appreciation of evidence, concluded that Smt. Krishnakumari is liable to be disqualified as a Councilor under Section 3(1)(a) of the Prohibition Act.

5. Smt. Krishnakumari contended before the Election Commission that she could not attend the meeting on 18.4.2017 due to medical reasons. She also contended that she did not receive the whip sent through registered post. She also defended her action for her absence on the ground that her leave application was allowed by the Chairman of the Municipal Council.

6. If the whip as alleged had been served on Smt. Krishnakumari, both limbs under Section 3(1)(a) of the Prohibition Act would be attracted. The first limb relates to voluntarily giving up the membership. The second limb relates to defying the whip.

7. The Election Commission found that whip was validly served on Smt. Krishnakumari. The Election Commission also found that her absence on 18.4.2017 was wilful.

8. It is trite a law that the whip has to be served on the member and also on the Secretary of the Local Self Government Institution. Section 3(2) of the Prohibition Act mandates that the whip shall be given to members in the manner prescribed and a copy shall be given to the Secretary of the Local Self Government Institution. Rule 4(2) of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 prescribes the procedure. It says whip shall be sent by registered post along with acknowledgement due and while effecting it by affixture, it shall be done in the presence of at least two witnesses.

9. The Election Commission also referred to the service of whip on the Secretary of the Local Self Government Institution. The Election Commission also relied on Ext.A31 affixture of the whip on the residence of Smt. Krishnakumari. The Commission also relied on Ext.A69 a registered postal cover. In the light of the evidence above, the Election Commission was of the view that there was a service of valid whip to attract the second limb of Section 3(1)(a) of the Prohibition Act. The fact finding made by the EC clearly shows that Smt. Krishnakumari was aware of the meeting on 18.4.2017 and she defied the party by remaining absent on that day. That would attract the first limb of Section 3(1)(a) for voluntarily giving up membership of the political party.

10. Smt. Krishnakumari had put forward two reasons for her inability to attend the meeting on 18.4.2017; first, on medical grounds and second based on her leave application.

11. The Election Commission examined her medical records. Smt. Krishnakumari was admitted to Push